EEOC Compliance Manual on Religious Discrimination

On July 22, 2008, the EEOC issued a press release proclaiming that it has issued "COMPLIANCE ASSISTANCE ON RELIGIOUS DISCRIMINATION” (Why the EEOC must use all caps in its press releases is a mystery.)

I've discussed religious employment discrimination issues in a prior posting. There, I reported on a North Carolina federal appeals court decision where the EEOC wanted the employer to waive the employer's neutrally and consistently applied attendance policy for an employee whose religious prohibited working on a Saturday. The EEOC Compliance Manual leaves no doubt that it continues to disagree with the court's decision. I won't repeat that discussion here.

Because of a recent lawsuit (in which I have no involvement) in the news, I was curious to see how the manual addressed the religious clothing issues. The manual is an utter disaster. It provides neither employees nor employers with coherent guidance on when an employer must permit, despite a dress code or uniform requirement, religious dress. The EEOC's ambiguous statements are as follows:

"religious discrimination may be found where an employer fails to accommodate the employee’s religious dress or grooming practices" - no doubt true, but the statement is far too vague to be of any help.

"Some courts have concluded that it would pose an undue hardship if an employer was required to accommodate a religious dress or grooming practice that conflicts with the public image the employer wishes to convey to customers." So what is the EEOC's position? All it then says is: "While there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of 'image' to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called 'customer preference') in violation of Title VII." There is no explanation whatsoever as to how an employer should decide whether their public image permits them to assert the accommodation would be an "undue hardship." The example the EEOC gives (customers might fear a worker is a terrorist for wearing a hijab (head scarf)) is so obvious it is laughable.

The final sentence of this section: "There may be limited situations in which the need for uniformity of appearance is so important that modifying the dress code would pose an undue hardship. However, even in these situations, a case-by-case determination is advisable."

We are a diverse country and, compared to most (even some "western" countries), remarkably tolerant of each other's religious views (not that further improvement wouldn't be welcome). That diversity and tolerance carries with a price. For employers, that price includes making unpopular and/or difficult decisions. More so than with any other protected class, religious employment discrimination issues force someone to compromise a principle. Given what is at stake, employers and employees deserved to receive much clearer guidance on this point from the EEOC.

Can an employer discriminate under the ADA without knowing which major life activity is significantly impaired?

You may have read that the federal appeals court in D.C. held that sexual relations is a major life activity. Somehow that made news.

What was much more interesting about the decision is how the court decided the plaintiff could show (depending on the proof) she met the definition of disability. The plaintiff had breast cancer and testified that her feelings for sex and romance were significantly affected even after her cancer treatments ended (except for regular medication). That was enough, the court said, to constitute a significant limitation where the employee showed she had a "record" of an impairment (the second of three definitions of disability in the ADA).

But, the employer (the government) argued, we did not know she had a substantial limitation of any major life activity so we couldn't have discriminated against her. That didn't matter to the court. It was enough that the government had knowledge of her substantially limiting impairment (or record of an impairment). In fact, government hiring regulations prohibited the government from asking about her ability to perform non-job related functions, and her ability to engage in sexual relations had nothing to do with her job.

The court distinguished the facts here (which it referred to as a "pure discrimination" claim) from the situation where an employee needs a reasonable accommodation because of a substantial limitation. In the latter situation, the employer will necessarily have to know which major life activity is affected so it can make the accommodation.

Several observations are worth contemplating. The decision was not unanimous on this point. There is a difference between not knowing which major life activity is affected and not knowing the employee has a disability. Action taken because of the employee's misconduct is non-discriminatory even if the employer later finds out the misconduct was caused by a mental impairment. And finally, an employer should rarely base significant employment action on whether or not the employee has a disability, as I explained in a prior post.

Why Employers Should Take Notes During A Job Interview

Lawyers in my field preach the importance of having good documentation. Not any documentation, but properly prepared documentation. That intimidates some employers who launch into a diatribe about those members of my profession who twist the meaning of words to suit their own purpose. I can't disagree with the latter assertion but it is no excuse for failing to documentation the facts on which an employment decision is based.

A recent district court decision involving the electric power distribution cooperative that services the countires surrounding Carthage, Tennessee, demonstrates what can happen in litigation when an employer refuses to document job interviews to avoid them being discovered in litigation. With the current purchasing agent deciding to retire, the employer interviewed several people, including the plaintiff, to replace him. Ultimately, the employer chose someone who had strong computer skills but who other had less qualifications for the job than did the plaintiff (so the court found in ruling that a jury had to sort out the facts).

It is well-settled that absent an unlawful motive or effect, courts don't decide what skills are necessary for any job. That is for the employer. In fact, court usually defer to an employers' decision comparing whether one applicant or another best satisfies the needed skills. We have even successfully defended a case in which the employer hired employees based on the high-technology skills it believed the employees would need to have to perform subsequent jobs.

The problem here was that not only had the job been done without a computer for decades, the available documentation said nothing about computer skills and the retiring employee had avoided using a computer for the 40 years he had performed the job. That in itself might not have been a problem because courts recognize that in selecting applicants, an employer is not rigidly bound to evaluating only the skills set out in the job description.

Here, however, the plaintiff argued, she was never asked her about her computer skills (which she admitted she didn't have) in the job interview. That left the employer defenseless because, as you might guess from the title, the interviewer said "that he does not take notes of employment interviews because such notes 'are discoverable . . . and can be used against [the company].'"

This was not the only reason the court refused to dismiss the case but it was the primary one. Had the employer been able to provide documentation showing computer skills were considered in evaluating employees for the promotion, the claims stood a much better chance of getting dismissed. Bear in mind that in this case, the employer made the successful candidate's computer skill a primary reason for her selection and the plaintiff seemed to be much better qualified on the other criteria. Other cases, as I have said, have made it clear not every selection criterion must be in the position announcement or job description. The more important the selection criterion, however, the more an employee will argue its absence is conspicuous.

The lesson is hopefully obvious. Not only should interviewers take notes, they should be trained to take proper notes. In a job or promotion interview, the questions should be listed ahead of time and asked to each candidate. The responses should be noted. The questions should encompass all of the relevant criteria or considerations the employer will use to decide who should get the job. These notes should be kept for at least 4 years.

I can't link to the decision as it is not easily available on the internet. The official name of it, for now, is Wright v. Upper Cumberland Electric Membership Corp., 2008 U.S. Dist. Lexis 54331 (M.D. Tenn. July 15, 2008). Anyone who wants a copy can e-mail me or leave me a comment.

Pregnancy Discrimination and Infertility Treatments

In 1978, Congress amended Title VII to include pregnancy in the definition of sex discrimination. It may seem straight-forward to say that discrimination because of pregnancy is sex discrimination but the idea, to this day, trips up many employers and employees. One reason for this (assuming honest intentions) is that pregancy means more than pregnancy. Female employees can be discriminated against because someone has the potential to be pregnant, International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991), because she wants to be pregnant in the future, Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005), or because she has, or refuses to have, an abortion. Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 364 (3d Cir. 2008).

Two days ago, the federal court of appeals in Chicago issued a decision which held that firing an employee because the employee was undergoing in vitro fertization was also discrimination because of sex. Infertility, the court acknowledged, can affect males and females (this was the basis for the lower court's decision holding there was no sex discrimination), but "even where (in)fertility is at issue, the employer conduct complained of must actually be gender neutral . . . . Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women."

Of course, the employer didn't outright admit it fired the employee because she sought in vitro fertilization. It asserted the employee was let go when offices were combined. But in the notes documenting the termination, the employer wrote, she had “missed a lot of work due to health,” and also noted, in describing the employee's performance, “absenteeism—infertility treatments.” That was enough to at least raise the spector that her attempts to become pregant played some role in the decision.

For something as common as it is, pregnancy cases can pose unusual issues for employers. On the one hand an employer is supposed to "ignore employee pregnancies," Reeves v. Swift Transp. Co., 446 F.3d 637, 641 (6th Cir. Tenn. 2006), but it cannot, if it wants to avoid the result in Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir. Ohio 2006), fail to make "congratulatory words" when an employee announces she is pregnant.

Age Litigation during Uncertain Times

Economic downturns bring out employment litigation. Today's decision of the Sixth Circuit involved economic uncertainty and a downturn in the telecom industry during the early part of the decade. Like most companies, Lucent, faced with a need to restructure, offered voluntary reduction packages to its union employees; participants were then selected based on their relative seniority. For reasons, unnecessary to explain here, Lucent later offered a second, more generous buyout, the first group of employees sued, claiming they were the victims of age discrimination.

The employees' age discrimination claimed failed for two reasons. First, when employees accept a voluntary reduction offer, they can't establish an adverse employment action, even when there is economic pressure (i.e., take it or lose it) on the employees. Second, the employees could not prove an unlawful motive because basing a buyout program on employee seniority is not intentional discrimination because of age.

The employees might have better luck trying to establish a disparate impact claim, a claim where employees need not show intentional discrimination, just a practice that unreasonably disadvantages older workers. After all, there is likely to be a statistical correlation between high seniority and age. The employees tried to argue this, but the first rule in bringing a disparate impact claim is to show a discriminatory impact. That requires statistics, specifically, identification of a practice that causes a statistically significant imbalance. No statistics, the court said, no luck. Even if they had statistics, they would probably have still lost because the union contract obligated the employer to select employees by seniority. (That would have been an interesting issue to litigate.)

The case is a lesson for the current economic times. Two Supreme Court decisions allowing disparate impact age claims have created huge uncertainty right when many employers must make significant cutbacks. Wise employers plan workforce reductions carefully, using, as much as possible, well-designed voluntary reduction incentive programs.

Court Holds an Employer Does Not Always Have to Permit Dueling Remedies

I've tried, but can't, think of any other field of law outside of employment law where persons claiming to be injured must be given multiple and independent avenues for seeking relief. My point isn't that all employment claims should only be brought in a court - that would be unsatisfactory to all. Rather, I can't think of any other field that demands people claiming to be injured be permitted to seek redress for the same injury in multiple proceedings. In some instances, an employee can simultaneously litigate his claim in an administrative proceeding, an arbitration proceeding and in a court.

To make matters worse, an employer can settle a discrimination claim but, according to the EEOC (with court sanction), cannot enforce a provision in the settlement agreement which requires the employee to waive the right to file a charge of discrimination or which penalizes the employee if the employee files a charge. See EEOC v. 14 SunDance Rehab. Corp., 466 F.3d 490, 497 (6th Cir. 2006) (holding merely presenting an employee with a severance agreement which had an objectionable clause in it was not illegal). Endless litigation is highly inefficient and no matter how well intentioned, the cost of an absolutist rule against attempts to bring finality to disputes ends up hurting employees in the long run. We already have laws which regulate how and when coerced settlements may be set aside.

Two decades ago, the federal court of appeals in Chicago held an employer could not refuse to participate in an internal dispute resolution proceeding when the employee filed a lawsuit over the underlying dispute. This week, the federal court of appeals in New York disagreed. Oddly enough the employer was the Connecticut agency that investigates discrimination complaints. They had a problem employee who complained of discrimination and wanted to pursue a grievance with her union. The union contract, however, said the employee may either arbitrate her grievance or file a charge with the state agency. When she filed a charge, the union and her employer stopped processing the grievance. She, with the support of the EEOC, sued claiming the withdrawal of the grievance was retaliatory.

The court held that the choice of remedies (arbitration or a discrimination charge) provision was not retaliatory. In its view, the provision "only requires that the employee make a concrete choice, at a specific time, between filing a state claim with the CHRO and having the union pursue his or her grievance in arbitration." This view is irreconcilable with the decision of the Chicago court.

It is worth noting that the employee hands down lost her underlying discrimination and retaliation claims on the ground that she had been fired for insubordination. Despite this, the employer had a major lawsuit on its hands.

Tennessee employers are better off (for now) not looking to be a glutton for punishment. Don't rush out to include a choice of remedies provision in an employee handbooks, company policies or union contract. As I said, the courts disagree and the EEOC will fight this decision. The New York court's ruling is simply an interesting first step toward reducing the ridiculous cost and risk of employment litigation.

Treating Similarly Situated Employees the Same

We always preach, in the discrimination law field, that like employees must be treated alike. One way for an employee to get to a jury (and persuade the jury that discrimination was afoot) is to draw a comparison between the employee and one or more employees of a different class who engaged in nearly identifical conduct (or performance). We call this comparing "similarly situated" employees. In otherwords, it really doesn't matter to a court or a jury that the fired employee stole from the company if others of a different race (sex, age bracket, etc.) were known to have stolen the same thing without consequence.

How you measure who is similarly situated is vital, and worth some thought, as the court of appeals in Chicago (governing Illinois, Indiana and Wisconsin) pointed out in a decision today against Sears.

Sears fired a store manager for poor performance. She brought an age claim saying Sears didn't fire other store managers for poor performance. The court rejected the premise of her argument, holding that she was, in fact, the poorest performer of the lot over the longest time period. The court also, however, reminded readers that when there are several comparators (those to whom the employee compares herself) picking and chosing amongst them, isn't proper. Suppose, in the set of comparators who perform about at the same level, some older workers fared better than the fire employee but some others fared worse, in terms of the consequences of their poor performance. The court explained it as follows:

A pattern where the protected-class members “sometimes do better” and “sometimes do worse” than their comparators is not evidence of age discrimination. Cf. Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993) (“Such a pattern, in which blacks sometimes do better than whites and sometimes do worse, being random with respect to race, is not evidence of racial discrimination.”).

What really persuaded the court was the way Sears objectively quantified store performance data (tracking, on a monthly basis, the store's customer satisfaction, personnel data, sales, and profits). Sears then added colored this evidence with two anecdotal examples of the plaintiff's poor performance. This made it very easy for the court to see that the plaintiff was, in fact, the poorest performing store manager.

The lesson about treating nearly identical conduct (or performance) the same still holds true. The court simply recognized that some level of variation is inevitable in dealing with groups of people and the employer's treatment of the whole group is what determines whether the employer made biased decisions.

The other equally important lesson is that an employer who fires an employee based only upon a subjective belief that the employee is the poorest performer is much less likely to fare as well in court as an employer who works objective factors into the decision. The "shoot from the hip" employer might win nevertheless, but so too might I win the lottery. The odds are against it.

Making accommodations without a request

Wal-Mart's pharmacies are in the news again for all the wrong reasons.

Last year, a jury decided, according to the Boston Globe, it discriminated against a female pharmacist in Massachusetts, awarding her $2 million in total damages.

Last month, the Wal-Mart agreed to settle a disability discrimination lawsuit brought by the EEOC for a pharmacy technician who claimed Wal-Mart did not accommodate his disability caused by a gunshot wound. The settlement included a $250,000 payment and agreement to conduct ADA training. The quote from the employee (in the EEOC press release) said it all: "After beating all the odds -- surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases -- I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could ‘no longer accommodate my handicap needs.'"

Last week, the federal court of appeals that decides cases from New York upheld a $900,000 judgment (the jury verdict actually awarded $7.5 million) in a disability discrimination action against Wal-Mart by a 19 year-old pharmacy employee who had cerebral palsy.

Last week's decision provided an interesting lesson for two other reasons. First, the pharmacy supervisor handled the situation poorly (in the jury's view) by her attitude toward the obviously disabled employee, by her refusal to deal with the employee after she concluded he would not "work out," and by her comments about the situation to the store manager who then relayed them to the employee's father (saying to the store manager, I'll reinstate him but "if we get sued, it’s on you" was not the smartest thing in the world comment to make.)

More interesting, however, was the court's holding that Wal-Mart discriminated against the employee by not making a reasonable accommodation to his known disability even though the employee never requested any accommodation. The decision held that where the disability is "known" to the employee, the employer must take the initiative to invoke the "interactive process" of determining whether a reasonable accommodation will permit the employee to perform the essential functions of the job.

The court didn't go into what further the employer must do but the message is clear. When the employee is not able to do some essential (or non-essential function) and the employer knows the employee has a disability (because it is obvious), the employer must act without waiting for the employee to request an accommodation.

Whether other courts will agree remains to be seen. The general rule is that employees must first request an accommodation but, this court held, where the disability is obvious, the employer cannot safely wait for the employee to make the first move.

(I'm not here to bash Wal-Mart. It is a huge corporation with a number of employees. It is going to be sued a good bit and it is going to lose (or settle) a good bit of those lawsuits. And, the settlement and court awards are "news," while the dismissals are buried in the final pages of the business section if reported at all.

To Sleep Perchance to Sue - Measuring Sleep as a Major Life Activity

I always advise employers not to make significant employment decisions based upon whether the employee (or applicant) has or does not have a disability (as defined in the Americans with Disablities Act). The definition is so complex that it is safer for an employer to assume that most any significant impairment could be a disability and act accordingly. This is inefficient, I know, but so is spending a week in front of a jury. Still, a wise employer is familiar with some of the less common types of disabilities.

The decision de jure involves an FBI agent wannabe who sued because he had post-traumatic stress disorder that caused him to be substantially limited in the major life activity of "sleep." Sleep, the court of appeals said, was a major life activity. Common sense makes it hard to disagree, given that we spend 1/3 of our life asleep (though the time spent on a life activity does not alone make it a major one). Other courts have agreed.

The more interesting issue was how the court concluded the employee had a mental impairment (PTSD) that substantially limited sleeping. Whether a limitation is substantial is determined by comparing the employee to the average person in the general population. Employees must offer more than generalized allegations of restless or fitful sleep, or occasional, temporary bouts of sleeplessness.

Here, the employee stated that because of his PTSD, there were times where he slept only 2 to 4 hours a night over a five month period. Citing a study which concluded 71% of adults get 5 to 8 hours sleep, the court held a jury could conclude the employee was substantially limited. Nor was it relevant that the employee's sleepless nights did not seem to affect him during the day: the ADA does not require an employee to "demonstrate that his impairment affects his work performance in some way or has an ancillary effect on his waking life in general."

There are several imortant points to remember about the decision. First, the amount of sleep deprivation here was significant. Other courts, faced with 4 to 5 hour nights sleep have disagreed on whether a jury could find the employee had a substantial limitation. Second, the court's substantial limitation discussion was so lengthy that it blurred some fundamental points. In determining whether the lack of sleep is a substantial limitation, it only makes sense to examine the hours per night (here, two to four hours), as well as its frequency over a substantial period of time (here, five months). What was missing in the decision was any serious discussion of the frequency issue. It was enough that the employee testified he "frequently" slept only 2 to 4 hours a night. (I don't blame the court; the employer may not have argued the point.) Occassional sleepless nights, even a few times a week, would be a much closer question. Finally, lack of sleep itself isn't a disability. There must be a physical or mental impairment that causes the lack of sleep.

Train your interviewers about disablity inquiries

Today the Sixth Circuit Court of Appeals (which decides federal law issues for several states, including Tennessee) issued a somewhat interesting disability discrimination decision. The decision doesn't cut new legal ground but serves as a reminder that employers should make sure interviewers are properly trained about asking disability related questions.

The lawsuit was brought anonymously so the decision is called Doe v. Salvation Army. The plaintiff was being interviewed for a truck driver position. During the interview, he said he could not work on Fridays because he had to see his doctor and pickup his medicine. The interviewer asked "what kind of medicine" and was told "psychotropic medicine." The interview then ended (abruptly, the decision implies) with the interviewer saying their insurance wouldn't cover the applicant (exactly what was said was disputed). The applicant was not hired and brought suit claiming disability discrimination under the Rehabilitation Act (the federal grantor equivalent of the Americans with DIsabilities Act).

After determining the applicant had a "disability" within the meaning of the statute, the court held the questions during the interview were improper. Sure, the Salvation Army had a legitimate interest in having truck drivers be safe, but during a job interview, asking about the types of medications the applicant was taking was not the way to address that concern. That question alone led the court to require a jury trial because it showed the interviewer had a preconceived notion about people who take psychotropic drugs and wasn't going to take a chance in hiring one of them. The court was not discounting the employer's legitimate need for safe drivers nor was the court saying the employer had to hire someone who couldn't work on Fridays (though that might have been required as a reasonable accommodation).

The ADA (and related statutes) give employers a several opportunities to determine whether an applicant or employee can safely perform a job. In this instance, the better course would have been to not ask at all about the medication but instead say, is this medication something would interfere with your ability to drive a truck. Any employer who employees drivers on the jbo has a legitimate reason in seeing that its drivers are safe operators. Employers can, if uniformly done, make conditional job offers and then conduct medical exams to see whether the applicant has any condition that would be reasonably likely to prevent the safe operation of a vehicle. Remember that there are limits on what can be asked (or used) during these medical examinations and on how the employer uses the information.

Two lessons: before conducting interviews, train your interviewers on the "do's and don'ts", give them refreshers if they don't do interviews that often, and keep a record of that training.
What really tripped up this employer, in the court's mind, was the stereotyped view the interviewer held about someone who takes psychotropic drugs. It is far, far better for an employer to conduct a valid post-offer medical exam and base a decision on whether applicant's (or employee's) actual traits/limitations preclude the employee from doing the job. Several cases (here is one) have essentially ruled that as long as the medical evaluation and the employer's reliance on it is not unfrounded, the courts will not find the employer had a stereotyped view of the applicant's (or employee's) disabilities.

Accommodating Religious-Based Absences

Two court decisions this spring put some perspective on the competing issues facing employers in accommodating the religous views held by employees. The first decision, EEOC v. Firestone Fibers, 515 F.3d 307 (4th Cir. 2008), arose in North Carolina in a Firestone tire plant. It is also of interest because the EEOC has brought a number of religious discrimination lawsuits and most employers don't encounter those kind of issues too often.

Employers generally know they must offer a reasonable accommodation to employees who have sincerely held religious views. Tension often arises at the intersection of the employer's need for employees to be at work and sincerely held religious views against working on the sabbath when it is a Saturday.

In the North Carolina case, the EEOC took the position that an employer provides a reasonable accommodation only when it "eliminate[s] the conflict between the religious practice and the work requirement." This would require “an employer, absent undue hardship, to totally accommodate an employee’s religious observances.” In practical terms, the EEOC wanted the employer to let the employee to take more unpaid leave time than permitted by the company’s attendance policy. The court of appeals rejected the EEOC's argument, holding that a reasonable accommodation does not mean a total accommodation with the only check being the undue hardship on the employer or co-workers.

What swayed the court of appeals was that the employer had tried several approaches to accommodating the employee. Among other things, the employer was "flexible" in interpreting the bargaining agreement leave rules and tried to schedule the employee on days other than his sabbath. Ultimately, the paid and unpaid leave ran out and employer refused to adopt what the court concluded would have amounted to a permanant exception to its attendance policy.

On the other side of the issue is a Tennessee case from Athens. The employer, Texas Hydraulics, also had an employee who objected to work on his sabbath. When business picked up, the employer mandated Saturday overtime work. The employer told the employee he would be excused from working on a Saturday if he found someone to work for him. The employee racked up points because he refused to work on Saturdays and was ultimately terminated.

The EEOC sued (EEOC v. Texas Hydraulics, 103 Fair Empl. Prac. Cas. (BNA) 299 (E.D. Tenn. 2008)) only the result here was different than in the North Carolina case because Texas Hydraulics, the court concluded, had not tried to accommodate the religious views. All Texas Hydraulics had done, the judge said, was assume any accommodation would be a hardship without giving an accommodation a chance to work. It was not enough to tell the employee he could find a substitute and be excused. Instead, the court suggested the employer could have (1) avoided liability by establishing a voluntary shift exchange, (2) compiled a list of employees that were qualified to substitute for the employee or (3) post a notice asking if any employee would be willing to substitute for the employee.

These decisions demonstrate some of the efforts employers should make in trying to accommodate the employee's sincerely held religious views. Texas Hydraulics shows the employer must take charge of the situation before jumping to the conclusion that the accommodation is too disruptive. Once the employer takes charge, however, Firestone Fibers shows there are reasonable limits on how far it must go. How much the employer must take charge and when the limits will be exhausted depends, of course, on the facts unique to the workplace in question.

The Importance of an Investigation

A couple of weeks ago, the Sixth Circuit (which hears appeals from Tennessee federal lawsuits) issued a decision, Roberts v. Principi, that confirmed the benefit of an employer conducting an investigation before making an adverse employment decision.

No federal discrimination or retaliation statute says an employer must conduct an investigation. Whether they say so or not, judges and juries expect employers to act "fairly" so they have grafted the obligation onto most discrimination and retaliation statutes. Right or wrong, it is now ingrained in our jurisprudence that an employer takes unnecessary legal risks by making decisions without conducting some kind of an investigation.

In the Sixth Circuit decision the employee was a nurse anesthetist ("NA") at the Johnson City, Tennessee VA medical center. The facts are complex and unnecessary to the point so I'll summarize by saying that the NA had issues getting along with her co-workers and complained to the federal EEO counsellor. She alleged a co-workers and supervisors had been hostile and retaliatory toward her. In the meantime, complaints about the NA surfaced (some valid, some biased) and the VA conducted an extensive investigation ultimately concluding the NA's presence during surgery was a problem more of her own doing than anyone elses. Based on this, the decsion-maker concluded the NA should be reassigned to another job. The NA sued contending this reassignment was retaliatory.

After years of litigation, the decision came down to whether or not the reassignment was based upon the improper motives of the co-workers. Had the decision-maker acted solely upon the biased complaints of the co-workers, the court said, that decision would have been retaliatory even if the decision-maker himself did not have it in for the plaintiff. It's a pretty well-settled but oft-confused principle (referred to as the "cat's paw" theory) that if the formal decision-maker is "duped" by those who have discrimiantory motives, those are the motives that count. To avoid this, employers can conduct an independent investigation. It is important that the investigation not be a facade (more on this in the future) and the extent of the investigation should be proportional to the severity of the decision.

Here, the decision-maker relied upon an extensive investigation, one more extensive than the court had upheld in prior decisions. Sure, some of the people interviewed had a "hidden agenda," the court noted, but that alone was not enough. "Where the employer's decisionmaker tries to get all sides of the story, the employer will not be held liable solely because one side might harbor a hidden bias against the plaintiff employee." In this, it is vital to ask the employee for the employee's version of events.

It is not uncommon for employees facing discipline or discharge to claim they are being discriminated against. Oft times, the focus of the discrimination is the employee's immediate supervisor. (Sometimes the employee doesn't assert discrimination by the supervisor until the lawsuit.) How an employer makes the decision is often as important as the decision itself and a valid investigation can moot a world of potential liabilities.

So when confronted with a situation where an employee's conduct might lead to discipline, especially if that employee has complained or exercised any protected rights, the employer should conduct a neutral investigation, interview the employee, and come to a fair resolution before rendering a decison.

A word of caution is necessary. The decision itself is not a "published" decision so it is not in a sense "binding" on district courts but they will nevertheless almost always follow it until a later decision says not to do so.

FMLA Requests in the 21st Century

At the end of April, a federal court of appeals in Chicago, issued an interesting FMLA decision.

The employer used an automatic processing unit to handle the FMLA paperwork when an employee requested medical leave. The employer used FMLA forms with bar codes unique to each employee - the bar codes are automatically read by the processing unit's fax machine and then sorted into the appropriate file. The employee (whose spouse also worked for the employer) claimed he sent in an FMLA leave request using his wife's form (changing her name to his), that the processing unit lost it (in cyberspace), and therefore the employer imposed an unreasonable burden on his exercise of FMLA rights.

To this, the court replied: "an employee should know better than to submit a request for leave on another employee's form, even if the other employee is the person's spouse." In the end, however, the court said the employer was not at fault as the request never could be found even in the spouse's FMLA file.

Further, the employer was not unreasonable to the point of interfering with FMLA rights in refusing to give yet another extension of time for the employee to submit the form. This is the real value of the decision as it construes that part of the FMLA regulations which require extensions when "it is not practicable" to timely submit the FMLA request. 29 C.F.R. § 825.305(b). Refusals to grant repeated extensions are not an FMLA violation.

Usually, patience is a virute in dealing with FMLA issues. Forgiveness by the employer is also sometimes legally mandated. This case shows, however, that if employers are reasonable they can (and should) draw the line at giving repeated extensions to return the FMLA request forms.
While the decision isn't binding authority for Tennessee employer it addresses a point they can, until a contrary decision is issued, rely upon.

The “new” but old retaliation claim

On May 27, 2008, the Supreme Court held that there is an implied right of action for retaliation in 42 U.S.C. 1981. CBOCS West Inc. v. Humphries, As to Tennessee employers, that had been the view of the Sixth Circuit for over 30 years (Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977), so, contrary to the splashy publicity, employers in this area will probably not see a major change (most attorneys who represent employees in race discrimination claims already add a 1981 claim when they file a Title VII lawsuit).

Two decisions from the Supreme Court have made lawsuits under section 1981 quirky from a procedural standpoint. The original statute, passed after the civil war, provided that all persons have the same right to make and enforce contracts as did white persons. After the supreme court narrowly interpreted the statute, Congress amended it in 1991 to broaden the kind of claims that could be brought.

Then, in 2004, the Supreme Court held lawsuits that could be brought because of the 1991 amendment could be filed within 4 years but claims that could have been brought under the statute before it was amended still borrowed state law which in Tennessee is 1 year. Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004). The reasoning behind these decisions is largely irrelevant to this topic so I'll omit it.

Two decsisions not terribly rooted in common sense mean that depending on the type of discrimination (i.e., hire v. fire) have very different time periods for filing a lawsuit. In Tennessee lawsuits over hiring decisions must be filed within 1 year while lawsuits over terminations have four years. So employers should keep all employment records, we advise, for at least four years.

What the recent CBOCS retaliation decision seems to foretell is that all retaliation claims (no matter the type) must be filed within 1 year (in Tennessee). The seven member majority reasons that in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), it had recognized a right to bring a retaliation claim based on a companion statute (section 1982) and that it had long interpreted sections 1981 and 1982 "similarly." Sullivan was obviously issued well before the 1991 Civil Rights Amendments Act. If, as the Court reasoned, a retaliation claim was originally recognized in 1969, that should mean that all retaliation claims under section 1981 borrow the state law statute of limitations (1 year in Tennessee) rather than the 4 year statute of limitations.

The CBOCS decision did not, however, specifically address the statute of limitation issue and different parts of the decision, if read out of context, could be read to support or deny the proposition that courts must borrow state statutes of limitations so it isn't yet clear which limitations period applies. Employers in Tennessee therefore should assume the 4 year period applies until the issue is resolved.

I should add that none of the above discussion affects lawsuits filed under Title VII, the "regular" employment discrimination statute.

Opening Thoughts

"A little common sense is not amiss in a discrimination case."

Most of the time this advice is overlooked, at least it seems to be, by lawyers, judges, employees and, in particular, employees.

There are a handfull of blogs on employment law written from the employee's point of view but few written for employers designed to help them keep up with recent, sometimes surprising, developments. Here we'll explore recent developments as they happen and try to help employers, particularly those in Tennessee (where I work). It may not be pretty but as long as people do stupid things at work, there will be plenty to talk about.